Summary

I learned a lesson when I found out that the police had
closed my case without even interviewing [the rapist], or testing the rape kit.
I learned that you cannot trust that the justice system will bring hope to you
or bring your rapist to jail. You cannot hope that what went wrong will be
righted.

—Justine, Springfield, IL, June 23, 2007

When a victim has a rape kit collected, she is doing everything
that is asked of her in the immediate aftermath of a traumatic crime. How can
we, on the one hand, encourage every rape victim to get a kit done regardless
of whether she knows the suspect or not, while on the other accept that police
discretion means many of these kits will never get tested? If we are going to
go to the considerable and worthwhile effort to collect rape kits, the least we
can do is test them to see what is there.

Carrie was a high school student in 2008 when she was raped
in an alleyway by her home in northern Illinois.[1] The man was a
family friend of her father’s, but someone she barely knew. Immediately
after the rape, Carrie went to the local hospital to have her body examined for
a rape kit.

When police came to the hospital to interview Carrie, they
indicated that they previously picked up the individual in question—for
sexually assaulting the teenage daughter of a family friend. The police took
Carrie’s rape kit with them when they left the hospital, and Carrie
assumed it was tested.

After that night in the hospital, Carrie did not hear back
from the police. She called once a day, then once a month. Six months after her
rape Carrie finally received a call back from the prosecutor who reviewed her
case. The prosecutor told her she was keeping the case open, but
“didn’t have any evidence to move it forward.” Carrie inquired
about the results of her rape kit, and was informed that it had not been tested
because her case “would not be a strong candidate for prosecution.”
When she asked the prosecutor’s office why, she was told that “it
is too hard to prove that what happened to you was rape. You may think its
rape, but it’s your word against his.”

When a
person is sexually assaulted and reports the crime, she will be asked by the
hospital staff or the police to consent to the collection of a rape kit. A
rape kit is the DNA evidence gathered from an examination of the
victim’s body, a process which can last between four and six hours. In
Illinois, the police collect the rape kit evidence from the hospital, and are
responsible for sending the rape kit to the crime lab for testing at the
request of either the police or a state’s attorney’s office
(“prosecutor’s office”). Testing a rape kit can identify
the assailant, confirm a suspect’s contact with a victim, corroborate
the victim’s account of the sexual assault, and exonerate innocent
defendants.

Carrie mentioned that the police had told her they had
arrested the suspect before on suspicion of rape, but the prosecutor told her
that there was not enough evidence in either case to move them forward. In
fact, the prosecutor told Carrie, “Maybe if we get this guy coming in
again for rape, we can move forward. In acquaintance rapes, it helps to
establish a pattern.” Carrie asked whether the prosecutor’s office
would test her kit to see if it could link her rapist to any other cases, but
the prosecutor declined the suggestion.

Carrie requested the police file in her case and was
provided with a redacted version which indicated that the police had not
interviewed the suspect, not interviewed other potential witnesses, nor
considered the hospital examiner’s report, which indicated “vaginal
swelling and tearing consistent with forced penetration.” As far as
Carrie knows, her rape kit continues to sit in police storage, untested.

Carrie is not alone. In Illinois, of the 7,494 rape kits
entered into law enforcement evidence over the past fifteen years by the 127
agencies that provided Human Rights Watch with rape kit data, only 1,474, or
19.7 percent, of rape kits booked into local law enforcement agencies could be
confirmed as tested. This means that only one in five rape kits collected by
law enforcement were definitely tested.[2]
In Human Rights Watch interviews, the Illinois State Police indicated that a majority
of sexual assault cases sent to the crime laboratory are eventually tested,
although we were not able to confirm that using data received from local law
enforcement.

Untested rape kits in Illinois represent lost justice for
the victims who reported their rape to the police; many have lost faith in the
criminal justice system. As one rape survivor told Human Rights Watch,
“When I learned my kit would not be tested, and my case closed, I thought,
why did I even report my rape? What was the point?”[3]

This report is the second installment in our national
investigation of unprocessed rape kit evidence, and the failure to investigate
and prosecute sexual assault in the US.[4]Illinois, according to the most recent Federal Bureau of Investigation (FBI)
data, makes arrests in only 11 percent of the reported cases of rape (the
national average is 22 percent), and the rape kit backlog both contributes to
and results from this failure of justice.

In 2004 after news reports revealed thousands of untested rape
kits in Illinois, then-Governor Rod Blagojevich announced that the state would
attempt to address this backlog, and helped promote the passage of a law
requiring the testing of all rape kit evidence by the state crime lab.[5]

In May 2010, during the course of Human Rights Watch’s
research into the continuing rape kit backlog in Illinois, the state
legislature, under the leadership of the Illinois Attorney General Lisa
Madigan, passed a second law—the most comprehensive rape kit testing
reform law in the US—to become the first state to definitively require
that every booked rape kit be tracked and sent to the crime lab for testing. The
governor is expected to sign the legislation but has not at the time of this
writing. While the bill is a significant step forward and provides a potential
reform model for other states to follow, the legislation’s success will
require a commitment of resources, oversight, and enforcement from the
legislature, the governor, and other major enforcement bodies.

The first law, the Sexual Assault Survivors Emergency
Treatment Act of 2004, mandated that rape kits collected by Illinois state and
local police on or after January 1, 2005, and sent to the Illinois State Police
for testing were required to be tested by the ISP crime laboratory within one
year. It also required the testing of every kit sent to the crime laboratory
before January 1, 2005, within two years of the law’s enactment.[6]

The 2004 law’s provisions were vague and confusing as
to whether they required every rape kit collected by law enforcement be sent to
the crime lab for testing. Human Rights Watch found only six law enforcement
agencies that thought they were obligated under the 2004 law to send every kit
to the crime lab. As a result, the law seems to have had a limited effect on
rape kit testing policies of police departments in Illinois. It is also not
clear whether the law helped the ISP reduce the rape kit backlog in their crime
laboratory, possibly because of a significant loophole in the 2004 law, that
testing of every kit within the timeframes specified would only occur “if
sufficient staffing and resources are available.” While the Illinois State
Police may have needed more funds to eliminate the rape kit backlog, the auditor
general, in a report issued in 2009, found that the ISP misused some of the
state funds they were given to test rape kits and other DNA evidence.

Capacity constraints and limited resources may explain the
number of untested rape kits at the crime laboratory, but cannot explain the
large numbers of untested or unaccounted-for rape kits in police custody. Most
individual police department policies that Human Rights Watch reviewed allow
detective or department discretion in deciding which rape kits to send to the
crime lab. Kit processing may be stymied on the level of investigating
officers, who exercise their discretion not to send the kits to laboratories
for any number of reasons; for example, if they presume that in cases of
acquaintance rape the collected evidence is unnecessary, or that, even without
interviewing a suspect, the case is too weak to move forward.

Some jurisdictions in Illinois empower their local
prosecutors (state’s attorneys) to conduct what is known as a “felony
review” of each potential criminal case in order to approve charges
(other jurisdictions conduct similar reviews but may not officially refer to it
as “felony review”). The state does not collect information on the
ultimate disposition of each case of sexual assault. But while Illinois courts
have ruled that felony sexual assault prosecutions may proceed where there is “credible
victim testimony,” state’s attorneys reject many of these cases
even in the presence of such testimony. This failure to lodge charges then
indicates to police that processing collected rape kits would be futile. State’s
attorneys also seem to stop the processing of kits by intervening directly with
state crime labs, according to testimony collected by Human Rights Watch.
Overall, the failure to process rape kits reflects an inadequate law
enforcement response to the crime of sexual assault, one which violates the
human rights of victims.

In response to the continuing backlog of cases since the
2004 law and news of significant numbers of untested rape kits in police
storage facilities, and to address inadequacies of clarity and enforcement in
the prior legislation, in May 2010 the Illinois legislature passed the Sexual
Assault Evidence Submission Act, a landmark rape kit reform which was
championed by Illinois Attorney General Lisa Madigan. The bill significantly
expands upon the 2004 law—it mandates that every rape kit be sent to the
crime lab within 10 days of its entrance into local law enforcement evidence
and be tested within six months of its receipt by the crime lab; adds rape kit
data reporting requirements; and requires the Illinois State Police to produce
a plan to test every new rape kit it receives and to eliminate the current
backlog. The law does contain the same testing requirement loophole that may
have contributed to the mixed results of the 2004 Sexual Assault Survivors
Emergency Treatment in reducing the crime lab backlog: the timeframe for crime
lab analysis is contingent upon the availability of “sufficient
staffing and resources.” The Illinois State Legislature has not yet
appropriated any funds for the police and crime labs to implement this law.

According to the law’s provisions, the legislature may
authorize funding for the law once the Illinois State Police submits a plan for
analysis which will include resource needs. This plan is due to the legislature
no later than February 15, 2011. Given that police departments across the state
currently do not submit to the crime lab all of the rape kits they enter into
evidence, successful implementation of the law will require, among other
things, an increased fiscal commitment from the legislature to make this good
law a practical reality. If the necessary resources are not made available to
law enforcement and the crime laboratories to test every rape kit, Illinois
must adopt a uniform decision-making process to determine which rape kits are
tested. Objective criteria that are relevant to the probative value of the
evidence to the case must guide this process.

During the course of our research into the rape kit backlog
in Illinois, we encountered numerous obstacles which made it difficult to get
an accurate account of the status of rape kits collected in the state,
obstacles that also affect treatment of sexual assault in the state’s
criminal justice system. There is a distinct lack of uniformity among
jurisdictions in how rape kits are tracked by police and sheriff’s
departments once booked into their evidence storage facilities. While the new
2010 law addresses some of these issues, at the time of our research, there
were no state guidelines regarding how jurisdictions should track rape kits,
record the status of rape kits, or format chain of custody and incident reports.
Until Human Rights Watch requested the rape kit data from jurisdictions, many
had never counted their untested rape kits or set up a system to track such
kits.

Furthermore, some of the largest jurisdictions in Illinois
did not respond to our data requests by the time this report went to press.
Chicago, the state’s largest urban area by far with over 2.7 million
people and at least 21 percent of the state’s population, provided
limited data to Human Rights Watch; they agreed to audit the rape kits
collected over the past two years but did not respond to our request for more
comprehensive data. And although the Illinois Office of the Attorney General
public records response training program given to over 500 law enforcement
officers and 12,000 public agencies in the state, jurisdictions failed to
respond appropriately to our public records requests.

There were also egregious instances of agencies providing,
or failing to properly redact, sensitive identifying information in their public
records responses. More than 25 agencies supplied victims’ names and 22
agencies also gave suspects’ names. In total, more than 1,000
victims’ names—nearly 100 of them child victims—were handed
over to Human Rights Watch from public records requests. Victim and suspect
addresses, telephone numbers, and social security numbers were also given by a
number of law enforcement agencies. Several agencies submitted the private
information of juvenile victims. DNA test results were also mailed to Human Rights
Watch in response to the public records request, which did not—and could
not legally—have sought such information. These errors in public record
data management occurred despite the fact that the Illinois Office of the
Attorney General offers comprehensive data training to law enforcement offices
in Illinois. It is troubling that, despite receiving adequate public records
training, law enforcement departments continue to make these serious mistakes.

Despite these obstacles, we have been able to capture a
significant portion of the number of untested rape kits in Illinois. In total,
from rape kit information provided by 127 law enforcement agencies to Human
Rights Watch, at least 7,458 rape kits were entered into law enforcement storage
in Illinois in the past 10 years, of 16,738 rapes reported in recent years. Only
31 percent of reported rapes resulted in the administration of a rape kit. Law
enforcement agencies reported that 3,547 (47.6 percent) of these kits were sent
to crime labs, and knew that only 1,474 (19.7 percent) of the kits were tested
although the Illinois State Police told Human Rights Watch a majority of rape cases
sent to them are eventually tested. Police and sheriff’s departments also
reported that a total of 4,173 kits were presently stored in local facilities,
38 rape kits were stored with the Illinois State Police, and 1,890 kits were known
to be destroyed.

Figure 1—Status of Rape Kits Entered into
Evidence by Police and Sheriff’s Departments in Illinois

Source: Data received in response to Human Rights Watch public records requests.

In addition to untested rape kits in police storage
facilities, Human Rights Watch also found other failures reflective of the
inadequate law enforcement response to reported sexual assaults: a shortage of
sexual assault nurse examiners (SANEs) to perform rape kit collections;
insufficient hospital treatment facilities for rape victims; and testing delays
at the state crime laboratory.

This report focuses primarily on the number of untested rape
kits Human Rights Watch found in police storage facilities, using data from
Human Rights Watch public records requests. It also points to larger concerns
with the state crime lab’s current capacity to handle the influx of
untested rape kits it will receive from police departments when the 2010 Sexual
Assault Evidence Submission Act goes into effect, assuming it is signed by the
governor. The 2010 law will require the Illinois State Police to come up with a
plan to test this influx of rape kits, and we urge the legislature, when
presented with the plan, to appropriate the necessary funds required to
implement the ISP plan.

If Illinois public officials wish to implement good public
safety policy standards and conform to human rights law they should move
decisively to comply with the 2010 law and eliminate untested rape kits in
Illinois, and more vigorously investigate and prosecute reported cases of rape.
Rape victims deserve justice and the people of Illinois expect law enforcement
to do all they can to prevent future crime. International human rights law
requires police to investigate reports of sexual violence and take steps to
protect individuals from sexual assault. The United States is party to a number
of treaties that acknowledge rape as a human rights abuse and require the US to
ensure the protection of its citizens from sexual assault and rape. These treaties
also entitle victims of violations to an effective remedy, placing obligations
on the US to ensure there is effective access to justice when such crimes are
committed.

For example, the United States is party to the International
Covenant on Civil and Political Rights (ICCPR), and to the Convention against
Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment
(“Convention against Torture”), both of which set out important
standards for victims of rape.[7]
The ICCPR guarantees the right to security of the person under Article 9, which
includes a right to protection of bodily integrity against third parties.[8]
Both the Convention against Torture and the ICCPR (under Article 7) guarantee
the right to be free from torture and cruel, inhuman, or degrading treatment.[9]
International tribunals and other bodies have established that rape is covered
by these prohibitions on torture.[10]

The United Nations Human Rights
Committee (HRC) has made it clear to states party to the ICCPR that they must “take
appropriate measures or … exercise due diligence to prevent, punish,
investigate or redress the harm caused by such acts by private persons or
entities.”[11]
The Committee against Torture requires states party to prevent and protect
victims from gender-based violence and rape by exercising due diligence in
investigating, prosecuting, and punishing perpetrators—even private
actors—of rape and sexual assault.[12]

Specifically, the Convention on the Elimination of All Forms
of Discrimination against Women (CEDAW) obligates states party to combat
discrimination against women.[13]
The Committee on the Elimination of Discrimination against Women, the treaty
body that interprets and monitors compliance with CEDAW, has affirmed that
violence against women is a form of discrimination against women, and that
states party to it should have effective legal, preventive, and protective
measures in place to provide justice for victims, hold offenders accountable,
and protect society from future acts of sexual violence.[14]
While the US has not ratified CEDAW and is therefore not a full party to the
treaty, it did sign the treaty in 1980 and therefore still bears a number of
legal obligations including, at a minimum, not to act in a way that would
undermine the intent and purpose of the treaty.[15]

The Inter-American system, of which the US is a member, pays
special attention to violence committed against women and children.[16]
The Inter-American Convention on the Prevention, Punishment and Eradication of
Violence against Women (“the Convention”) prohibits violence
against women and affirms a woman’s right to physical integrity and security.
It further requires state parties to act with “due diligence to prevent,
investigate and impose penalties for violence against women.”[17]
Since rape is a crime that is primarily committed against women, states party
to the Convention have a special obligation to respond to and prevent rape and
sexual assault. The United States is one of three members of the Organization
of American States that has not ratified the Convention.[18]

Bearing in mind these standards, governments should take the
necessary measures to avoid the significant consequences of delayed or denied
justice for victims of rape. Illinois is grappling with those consequences, and
the 2010 Sexual Assault Evidence Submission Act provides unprecedented potential
for rape reform. Given the large number of untested kits in Illinois local law
enforcement storage and the significant resources necessary to complete the
task, resolving the way Illinois deals with its untested rape kits and ensuring
the success of the 2010 law will require the continued leadership of many of
Illinois’s elected officials. In order for laws like the Sexual Assault
Evidence Submission Act to have concrete results for rape victims, Illinois
will need to demonstrate greater commitment, in both oversight and resources,
to enforcing its laws on rape kits. The value a state places on its rape kits
is one measure of how seriously it takes the crime of rape and the victims who
report sexual violence. Testing rape kits has a practical effect on criminal
justice outcomes, but it also sends an important message to rape
victims—that their cases matter.

[2]
The Illinois State Police crime laboratory also provided Human Rights Watch
with data on the aggregate annual total of cases of sexual assault evidence
submitted to the crime laboratory and aggregate cases of sexual assault
evidence moved forward through the testing process. This data was not used in
our calculations because it was not specific enough to track each rape kit from
its collection from the victim to its current status; extraction beyond the
aggregate was not possible.

[7]
International Covenant on Civil and Political Rights (ICCPR), adopted December
16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc.
A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976,, ratified
by the United States on June 8, 1992; and the Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against
Torture), adopted December 10, 1984, G.A. res. 39/46, annex, 39 U.N. GAOR Supp.
(No. 51) at 197, U.N. Doc. A/39/51 (1984), entered into force June 26, 1987,
ratified by the United States on October 21, 1994.

[8]ICCPR ,
art. 9. The UN Human Rights Committee (HRC), which oversees the implementation
of the ICCPR, has confirmed that the right to security of person in Article 9
means that persons have a right to protection from interference with their
personal integrity by private persons, see, for example, Delgado Paez v
Colombia, No. 195/1985, Decision of July 12, 1990.

[11]UN HRC, ICCPR,
General Comment No. 31, Nature of the General Legal Obligation Imposed on States
Parties to the Covenant, CCPR/C/21/Rev.1/Add.13 (2004), http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/CCPR.C.21.Rev.1.Add.13.En?Opendocument
(accessed June 23, 2010).

[13]
Convention on the Elimination of All Forms of Discrimination against Women
(CEDAW), adopted December 18, 1979, G.A. res. 34/180, 34 U.N. GAOR Supp. (No.
46) at 193, U.N. Doc. A/34/46, entered into force September 3, 1981, signed by
the United States on July 17, 1980.

[14]Committee
on the Elimination of Discrimination against Women, General Recommendation No. 19,
Violence against women, UN Doc. A/47/38, para. 24 (t), (1992), http://www.un.org/womenwatch/daw/cedaw/recommendations/recomm.htm#recom19
(accessed June 23, 2010). The Committee on the Elimination of Discrimination
against Women authoritatively interprets and monitors state compliance with
CEDAW.

[15]Vienna
Convention on the Law of Treaties, adopted May 23, 1969, entered into force
January 27, 1980, article 18.

[16]The Organization of American States (OAS) is a regional
organization which hosts a number of institutions known as the Inter-American
system. Its founding document is the 1948Charter of the OAS and it has 35 independent states of the Americas, including the US which was one of the original members in
1948.

[18]
Canada, Cuba, and the United States have not ratified the Convention. However, from
1962 until June 3, 2009, Cuba was suspended from participating in the
Inter-American system, a suspension that was lifted by OAS Resolution AG/RES. 2438
(XXXIX-O/09), http://www.oas.org/dil/general_assembly_resolutions_39_regular_session_honduras_june_2009.htm
(accessed June 23, 2010).